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Summary: Nursing homes are frequently a patient's destination for rehabilitation following surgery. Common conditions fitting this bill include large bone fractures, hip replacements and stroke. Following these acute episodes, the patients are too unstable to go home and not "sick" enough to have their hospital stays reimbursed by insurance companies. The purpose of admission to a nursing home is to help the patient regain lost function, strength and health. In this case, the patient would remain in the Nursing Home till her death of complications.

The patient was admitted to a state owned nursing homefollowing repair of a femoral fracture. Her treatment plan emphasized Physical, Occupational therapy and Nursing careto provide for rehabilitation.

She had successfully undergone surgery to repair a fractured femur. The length of stay projected was six weeks. During this time, the patient's condition would worsen rather than improve.

This is not an isolated incident. Media attention is continuously focusing on conditions in nursing homes.

"A TIME investigation has found that senior citizens in nursing homes are at far greater risk of death from neglect than their loved ones imagine. Owing to the work of lawyers, investigators and politicians who have begun examining the causes of thousands of nursing-home deaths across the U.S., the grim details are emerging of an extensive, blood-chilling and for-profit pattern of neglect."2

The patient's skin was intact and she was continent on admission. She would develop multiple pressure ulcers on her bony prominences. These are frequently the consequence of inadequate turning and poor nutrition. Monitoring of both of these factors are direct responsibilities of nurses and nursing home personnel. If either is inadequate, a duty is owed to the patient by the nurseto inform the physician. The physician, once made aware, is then charged with taking additional measures as needed.

The patient would have a Foley catheter inserted supposedly for urinary incontinence. Documentation would later show that need for catheterization had not been established.

The patient had been fully continent on admission. Her rehabilitation plan called for her to ambulate to the bathroom when needed. An assessment of her ability to go on her own was nowhere to be found at the time of her Foley catheter insertion. Development of a urinary tract infection is a known complication of catheter use. The patient would develop a UTI soon after.

"In the last year, complaints against nursing homes in Texas are up over 60%. Medication errors, under-staffing, unsanitary conditions, neglect, lack of care, substandard care and injuries from dangerous products, are but a few of the dangers. The administrators of these facilities contend that the level of care is excellent in Texas nursing homes but, state investigators and Texas juries have been sending a different message."3

On the initial trial, the court dismissed the claims. They based this on the fact that the nursing home personnel were "state" employees and supposedly immune from liability.

1. Could the nursing home personnel in a public facility be held liable for negligence in the care of the patient? Specifically, could they be sued for not maintaining the standards of care required by the state?

2. Were the "incidents" leading up to the patient's deterioration reasonably "foreseeable" by a prudent caregiver in a similar situation?

This documentation included fractures during transfers (one requiring re-hospitalization and extensive surgical repair), the development of skin breakdown, the development of infections of the respiratory, urinary and gastrointestinal tract.

Each of these events suggested that care for the patient could be falling below accepted standards. Each of these events could be identified as necessitating further therapy and increasing the patient's length of stay.

In reviewing the Tort Immunity Acts of Illinois, it was determined that liability could be assessed for acts of negligence or omission in the patient's care.

It was clear from physical, mental and health status changes that the patient was deteriorating. These changes, specifically the multiple injuries during transfers, development of skin breakdown and infection could be traced to negligence in the omission of required care. Any time the treatments prescribed by the physician are not carried out, or if it is not documentedthat they have been carried out, the possibility of omission and negligence is raised.

It is highly unlikely that if the treatments and care prescribed had been given that the gross deterioration would have occurred. In this case, documentation of care was not present. Documentation of "likely results of neglect" was present.

This underscores the necessity of properly documenting the care you give. Many facilities are adopting "charting by exception" policies. These are dangerous in that they may not account for basic care given. In saving time and nursing costs for a facility, not fully charting care given can raise the question of a nurse'somission and negligence later in court.

If the temptation to chart care that is not given is present, keep this in mind.

If time for giving proper treatments and care is not there, falsifying records is patently illegal. It is an offense that could cost you your license if reported to the State Board.

In the case of a lawsuit, it is much cheaper for a facility to scapegoat a nurse, than defend one. If reporting you to the State Nursing Board, or threatening to will give their attorney's a bargaining chip to keep an employee "quiet," about existing conditions they'll use it.

"Generally, the nursing-home industry likes to settle lawsuits quietly and often hands over money only in exchange for silence."2

A nurse must decide if saving facility money by spending less time charting or on patient care is worth possible liability or loss of licensure down the road. It is highly unlikely that a nursing home or hospital will defend a nurse named in a lawsuit. This chiefly will happen only when the facility's assets are at stake.

If conditions in a nursing home are visibly substandard, a nurse must ask if it is wise to continue working in the facility. Ask yourself. Is the administration receptive to suggestions for improvement? Do they raise concerns over overtime and time involved to complete care and charting?

As media attention and lawsuits increase, more nurses will find themselves involved in legal actions. If it's determined that poor conditions existed yet nothing was done about them, the cost in liability could be high.

"Palo Alto attorney Von Packard has studied the death certificates of all Californians who died in nursing homesfrom 1986 through 1993. More than 7% of them succumbed, at least in part, to utter neglect--lack of food or water, untreated bedsores or other generally preventable ailments. If the rest of America's 1.6 million nursing-home residents are dying of questionable causes at the same rate as in California, it means that every year about 35,000 Americans are dying prematurely, or in unnecessary pain, or both."2

Many states have "elder abuse" legislation mandating abusebe reported. Whistle blower legislation is slow in coming. Currently the employer's interests are put first rather than the patient's or employees in most cases. Protections for nursesthat do report abuse are questionable in their effectiveness. The risk of employer retaliation is high.

The chances of a nursing home or hospital defending you against the State Board of Nursing when your license is at stake over an incident are almost none. In fact, it is common for complaints to be filed by the facility where a nurse has worked.

Unless you have a personal malpractice insurance policy, you will be forced to pay for this representation out of pocket. For less than the cost of a typical day's pay (around $70-$90 per year), most personal policies will provide representation at no additional cost to you.